CIMINELLO PROPERTY ASSOCIATES Against NEW 970 COLGATE AVENUE CORP. and BRONX RIVER AVENUE, LLC.,
NEW YORK SUPREME COURT———-COUNTY OF BRONX
PART IA-5 CIMINELLO PROPERTY ASSOCIATES,
Plaintiff(s), Against
NEW 970 COLGATE AVENUE CORP. and BRONX RIVER AVENUE, LLC.,
Defendant(s).
The following papers numbered 1 – 3, 1 – 3;
Read on this Defendant New 970 Colgate Avenue Corp. ’s Motion for Summary Judgment and Defendant Bronx River Avenue,
LLC’s Motion for Summary Judgment
Index No.: 25834/2017E
Present:
HON. ALISON TUITT
Justice
On Calendar of 9/27/2021
Notice of Motion (seq. 3) – Memorandum of Law, Affirmation, Affidavits and Exhibits Affirmation in Opposition – Memorandum of Law, Affirmation, Affidavit, and Exhibits Reply – Memorandum of Law 3 .
Notice of Motion (seq. 4) – Memorandum of Law, Affirmation, Affidavits and Exhibits Affirmation in Opposition – Memorandum of Law, Affirmation, Affidavit, and Exhibits Reply – Memorandum of Law 3 .
Upon the foregoing papers, Defendant New 970 Colgate Avenue Corp. and Defendant Bronx River Avenue, LLC’s motions for summary judgment are consolidated for purposes of this decision. For the reasons set forth herein, Defendants’ motions are granted – Plaintiff’s Complaint is dismissed.
This litigation arises from Plaintiff’s claim that Defendants have physically obstructed and interfered with an easement benefitting Plaintiff’s property that is landlocked and occupied by industrial and warehouse tenants. Plaintiff alleges that as a result of Defendants’
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actions, vehicles seeking to make deliveries to and from Plaintiff’s property are unable to do so, threatening the viability of Plaintiff’s tenants’ businesses. Specifically, Plaintiff alleges that Close Avenue has been used for at least half a century or more as a throughway for the passage of trucks and other large vehicles to make deliveries to and from Plaintiff’s properties and has been rendered impassable due to Defendants’ actions.
History
Plaintiff provides that the entire portion of Close Avenue which included Lot
3648 and 3649 was owned by the Sacchi Family “in or around the 1950s.” Nicholas Sacchi sold the block containing 950 Colgate Avenue (designated on the Bronx tax map as Block 3648, Lot 19) to Dominick Cannavo (hereinafter referred to as “Cannavo”), by deed dated March 29, 1961. On December 3, 1962, Cannavo sold 900 Close Avenue, Bronx New York to Loral Electronics Corporation designated on the Bronx tax map as Block 3648, Lot 1. Said property was later conveyed to Lockheed Martin Corporation by merger with Loral Electronics on November 24, 1998, and then to Close Avenue Realty Association. On December 13, 1963, Cannavo sold 950 Close Avenue, Bronx, NY, designated on the Bronx tax map as Block 3648, Lots 19 to Colgate Realty Corp., which sold title to Colgate Realty Associates via deed dated 12/31/88; then to 970 Colgate Avenue Corp via deed dated March 5, 1990, and finally to New 970 Colgate Avenue Corp. (deed dated July 30, 2014). On December 27, 1999, Close Avenue Realty Associates Ltd. sold both Block 3648, Lot 1 (also known as 900 Close Avenue) and Block 3647, Lot 1 (also known as 900 Bronx River Avenue) to Bronx River Avenue LLC. Plaintiff Ciminello Property Associates (hereinafter referred to as “Plaintiff” or “CPA”) in 1969 purchased three parcels of commercial property, designated on the Bronx tax map as Block 3647, Lots 51 and 60 and Block 3648, Lot 25. A few years later, Ciminello purchased an additional parcel, a portion of property that bordered the northern portion of Lot 51, and that is designated on the Bronx tax map as Block 3647, Lot 50. These properties are referred to as the Ciminello Properties.
CPA alleges that the four parcels are “landlocked” in that they have no frontage on any public street. The commercial properties are located in the interior of a block that is bounded by Bruckner Boulevard to the north, Story Avenue to the south, Colgate Avenue to the east and Bronx River Avenue to the west. The block is divided in two by a mapped but unopened street, Close Avenue, which runs between Bruckner Boulevard and Story Avenue. The only access between the Ciminello Properties and the public street is by traveling along Close Avenue to
either Bruckner Boulevard to the north or Story Avenue to the south. Three of the four lots comprising the Ciminello Properties, Lots 50, 51 and 60 are located on the westerly half of the Close Avenue block and the fourth lot, Lot 25, is located in the easterly portion of the Close Avenue block.
Procedural History:
Plaintiff commenced the herein action on June 29, 2017, with the filing of the
Summons and Complaint. Issue was joined with the submission of a Verified Complaint with Affirmative Defenses and Counterclaims by Defendants New 970 Colgate Avenue Corp. (hereinafter referred to as “New 970”) and Bronx River Avenue, LLC (hereinafter referred to as “BRAL”) on July 28, 2017, jointly. On August 17, 2017, Plaintiff filed an Answer to Defendants’ counterclaims and an Order to Show Cause seeking a preliminary injunction pursuant to CPLR § 6301 and CPLR § 6311. Upon change of counsel, Defendant, New 970, filed an Order to Show Cause to supplement the motion record pertaining to Plaintiff’s preliminary injunction motion. A decision to the parties respective Orders to Show Cause was rendered on March 1, 2019. Plaintiff subsequently appealed the Court’s decision which was unanimously affirmed. Defendants now file the herein motions for summary judgment.
Now, upon motion, Defendant New 970 files for an Order, pursuant to CPLR § 3212, granting summary judgment dismissing the Complaint as against New 970, in favor of its First Counterclaim, and granting Declaratory Judgment that New 970 owns certain property on Close Avenue. Defendant BRAL also makes an application requesting summary judgment pursuant to CPLR § 3212 (though incorrectly labeled as a CPLR § 3213 motion) dismissing the Complaint, declaring the property line, permanently enjoining Plaintiff from encroaching on Defendant’s land, declaring adverse possession and attorney’s fees. Plaintiff opposes both motions.
Motion Sequence 3:
In seeking summary judgment, Defendant New 970 asserts that there are no issues
of triable fact as Plaintiff cannot provide evidentiary proof to support their claim for an implied or prescriptive easement. Defendant New 970 further argues that Plaintiff cannot establish a claim for monetary damages by virtue of anything Defendant has done on its property. In support of the motions, Defendants New 970 and BRAL submit joined exhibits including the record on appeal, photographs and marked up property maps of the area, deposition transcripts of various witnesses
and the deed for 950 Close Avenue.
Defendant New 970 argues that Plaintiff cannot establish a claim of implied
easement without proving by “clear and convincing evidence” that the easement existed prior to and during 1963 when there was a unity of title between the properties located at 945 and 950 Close Avenue. Defendant New 970 argues without proof to show this unity of title, there can be no implied easement for Plaintiff. Defendant New 970 states that though Plaintiff alleges that
the servitude created was “permanent and obvious” and necessary of the use of 945 Close Avenue warehouse, no proof or witnesses have been provided attesting to how the properties were used on and before 1963. Defendant New 970 further argues that Plaintiff is equally unable to prove that an implied easement to travel over Defendant New 970’s driveway existed as unity of title for the entire length of Close Avenue ended in the 1961 when the property was sold by Sacchi to Cannavo. Defendant New 970 argues that review of the deed shows that an express easement was given to Plaintiff when the property was sold. Thus, Plaintiff’s claim that they were landlocked is “blatantly false,” and belies the existence of any implied easement on the property. Defendant New 970 argues that as the express easement runs with the land, upon Cannavo’s purchase of the property in 1969, Plaintiff’s tenants were provided the ability to go north to access Bruckner Boulevard. Defendant New 970 asserts that Plaintiff’s claim that a prescriptive easement existed warranting ejecting Defendant New 970 from their premises can similarly be disproved because of the express easement which existed with the property.
Defendant New 970 asserts Plaintiff’s claim for compensatory and punitive damages should also be dismissed as they have incurred no provable money damages resulting from Defendants’ actions. Defendant New 970 argues that Plaintiff’s allegation that its tenant, Eve Sales incurred trucking fees which will be imputed to Plaintiff is unfounded. Furthermore, Plaintiff’s testimony that Eve Sales is expected to terminate its lease was refuted by Stuart Gale, owner of Eve Sales. Defendant New 970 states that Mr. Gale’s confirmation that there was no current or recent interference with his business, and that Plaintiff is unable to raise the rental value of the warehouse is speculative damages and cannot be calculated. Moreover, Plaintiff has not provided admissible evidence to support financial damages based on its trespass claim as Defendants cannot be showed to have acted with “actual malice” or to have a “wanton, willful or reckless disregard for Plaintiff’s rights.” Defendant New 970 concludes that Plaintiff’s lack of evidentiary support as delineated above warrants summary judgment to Defendant New 970 and a declaratory judgment to quiet title to the subject premises.
Plaintiff submits a joined opposition to Defendant New 970 and Defendant
BRAL’s motions stating that genuine issues of fact exist warranting a dismissal of the motions. Plaintiff argues that Defendants New 970 and BRAL did not permit Plaintiff and its tenants use of Close Avenue for more the twenty (20) to thirty (30) years as they were not the owners during the permissive period which commenced in 1969. Plaintiff states that for the length of their ownership from 1969, their tenants have used, maintained, and controlled the entire length of Close Avenue to complete their respective business. Plaintiff explained this was achieved by having full control of the North and South gates, maintaining the roadway from debris and snow, and repaving any potholes or sinkholes. Plaintiff asserts that there is a question of whether they maintained exclusive control over the roadway sufficient to deem it hostile and not common use with the general public to render the establishment of an easement. Plaintiff argues that Messrs Gale and Gamez, representatives of their tenants, Eve Sales and K&W, further testified that during the 1980s, they were the only entities operating on Close Avenue and had control over the North and South gates, eventually sharing the keys with select representatives of Plaintiff or other tenants and the security company Eve Sales hired well into the year 2013. Plaintiff also provides that Mr. Cimenello Sr. testified that he nor his family members never requested use any portion of Close Avenue and they maintained the keys to both the North and South gates upon purchase of the property(s). Plaintiff reasons that the above facts warrants dismissal of Defendants’ summary judgment motions.
Defendant New 970, adopting and incorporating by reference all arguments asserted on behalf of co-defendant, BRAL, in their Reply reiterate that summary judgment should be granted. Defendant New 970 argues that Plaintiff has not provided admissible evidence to support its claim for monetary damages as they have not “sustained a single dollar of actual monetary damages as a result of the Defendants’ alleged short-term interference with Ciminello’s claimed easement.” Defendant New 970 states that as a commercial landlord, Plaintiff should be able to delineate the monetary amount of damages sustained from Defendants’ alleged trespass and their inability to do so requires the Court to dismiss their fourth cause of action. Defendant New 970 further argues that Plaintiff has failed to establish an implied easement as it is unable to provide witnesses who can attest to the “actual use of Close Avenue prior to 1969,” and Plaintiff’s speculation as to how the property was used is insufficient. Defendant New 970 states that though neither party can provide evidence of an implied easement during the early 1960s, this does not relieve Plaintiff of its burden to prove the easement existed prior to its purchase in 1969. Defendant New 970 asserts that as Plaintiff only claims an easement and not ownership over Defendants’ property as established in the filed Bronx County real estate records, they should
receive a declaratory judgment confirming their ownership of the property line up to the roadbed of Close Avenue.
Defendant New 970 discloses that there are two distinct arguments to be made by Plaintiff pertaining to the properties, that of the center lane to travel between Story Avenue and Plaintiff’s properties, and the other is to take over “every square inch of the sides of Close Avenue” for parking and storage purposes. Defendants assert that Plaintiff’s claim to take over the Defendants’ parking and storage areas on the sides of the road “actually amounts to a claim of adverse possession,” which was never pleaded or proven. Defendants argue that Plaintiff’s assertion of a right to park on Defendants’ property is a claim to occupy that land to the exclusion of Defendants themselves and exposes them as the owners to compensatory and punitive damages for trespass for parking in Plaintiff’s parking easement. Defendants aver that Plaintiff’s claim is for a possessory interest in real estate, which differs substantially from a claimed easement to travel over a part of somebody else’s property. Defendants further contend that Mr. Gale’s testimony refutes Plaintiff’s claimed easement as he testified that there was no “claim of right” to the parking area on 950 Close Avenue or by the 900 properties as neither Plaintiff nor its tenants established authority to stop the public from parking. Moreover, Defendants argue asking individuals to move their cars and providing no consequences when they did not, does not equate to a “hostile or adverse claim to the parking area on 950 Close Avenue.” Defendants argue that Plaintiff provided no evidence of a prescriptive easement over the center travel lane on Close Avenue as it was also used by the public. Despite Plaintiff’s argument of “free snow plowing and free road maintenance and that it also provided free nighttime security,” this evidence does not support Plaintiff’s claim that the use was adverse to the owners of Defendants’ properties. Defendants argue that Plaintiff’s failure to establish that an implied or prescriptive easement existed warrants dismissal of the complaint.
Motion Sequence 4:
In support of their summary judgment motion, Defendant BRAL argues that the
documentary evidence and witness testimonies provided refutes any claims by Plaintiff that an implied easement existed over the “900 properties.” Defendant BRAL maintains that an implied easement requires a showing of “unity in title” and Plaintiff cannot support any claim that prior to 1969 when Cannavo owned Plaintiff and Defendant’s lots, an easement express or otherwise existed as they exited the north end towards Bruckner under the 1959 express easement recorded from Sacchi. Defendant BRAL asserts that any claim by Plaintiff to an implied easement to
travel over the “900 properties” is unfounded. Defendant BRAL continues that Plaintiff’s argument of an implied easement would survive if Cannavo created one on a basis of strict necessity after breaking the unity of title when he sold the lots to Loral Electronics. However, this presents an unavailing argument as Cannavo had the 1959 express easement from Sacchi to travel northwards via Bruckner Avenue and could only convey the interest it kept. Defendant BRAL maintains that an implied easement requires a showing of “unity in title” and Plaintiff cannot support any claim that prior to 1969 when Cannavo owned Plaintiff and Defendant’s lots, an easement express or otherwise existed. The only authority Plaintiff had was to exit the north end towards Bruckner under the 1959 express easement recorded from Sacchi. Defendant BRAL continues that there is no evidence that Cannavo reserved an implied easement as grantor, in its favor when they sold the lots, nor has Plaintiff provided evidence in discovery or through witness testimony as to the activities which occurred on Close Avenue during or before 1961 establishing the intentions of the Sacchi family when they transferred the property to Cannavo. In addition, Defendant BRAL asserts that Plaintiff’s claim for a prescriptive easement on Close Avenue was neither hostile or exclusive as use of Close Avenue was extended to the general public and permitted “as a matter of neighborly accommodation.” Defendant BRAL states that Plaintiff did not exclusively maintain or control Close Avenue prior to the purchase by the O’Farrell Family (Representatives of Defendants BRAL and New 970) as Close Avenue was a “virtual playground and meeting place for the general public, who used Close Avenue as a throughway, free parking lot, chop shop, meeting place, outdoor tavern and drug den, and secluded spot to engage in prostitution.” Furthermore, contrary to its claim, Plaintiff’s witness testified that the tenants completed snow and garbage removal themselves. Defendant BRAL argues provided Plaintiff established a prescriptive easement it was extinguished by Defendant BRAL’s adverse possession under claim of right. Specifically, when the O’Farrell Family purchased the 900 properties, they exerted ownership and control over Close Avenue between the properties by installing a new Story Avenue gate, and exclusively maintained keys to the padlocks which were provided to their employees and Eve Sales as a neighborly accommodation. This control was exclusive, open, notorious and hostile, and continued for ten years without complaints from Plaintiff. Defendant BRAL concludes that Plaintiff suffered no cognizable damages from their trespass claim as there is no facts or documentary evidence provided to support Plaintiff claim.
Plaintiff submits opposition mirrored to that provided in motion sequence 3. Specifically, Plaintiff’s oppositions to Defendant New 970 and Defendant BRAL’s motions for summary judgment state that genuine issues of fact exist warranting a dismissal. Plaintiff argues
that Defendant New 970 and BRAL did not permit Plaintiff and its tenants use of Close Avenue for more the twenty (20) to thirty (30) years as they were not the owners during the permissive period which commenced in 1969. Plaintiff states that for the length of their ownership from 1969, their tenants have used, maintained, and controlled the entire length of Close Avenue to complete their respective business. Plaintiff explained this was achieved by having full control of the North and South gates, maintaining the roadway from debris and snow, and repaving any potholes or sinkholes. Plaintiff asserts there is a question of whether they maintained exclusive control over the roadway sufficient to deem it hostile and not common use with the general public to render the establishment of an easement. Plaintiff argues that Messrs Gale and Gamez, representatives of their tenants, Eve Sales and K&W, further testified that during the 1980s, they were the only entities operating on Close Avenue and had control over the North and South gates, eventually sharing the keys with select representatives of Plaintiff or other tenants and the security company Eve Sales hired well into the year 2013. Plaintiff also provides that Mr. Cimenello Sr. testified that there was never a request from him or his family to use any portion of Close Avenue and they maintained the keys to both the North and South gates upon purchase of the property(s). Plaintiff reasons that the above warrants dismissal of Defendants’ summary judgment motions.
In their Reply, Defendant BRAL reiterate that summary judgment is warranted under the law as undisputed facts and documentary evidence prove that Plaintiff does not have an implied easement over Close Avenue between the 900 Properties. Defendant BRAL further argues that any evidence presented by Plaintiff is based on speculation and self-serving statements, and cannot satisfy the burden of clear and convincing evidence. Defendant BRAL further states that Plaintiff’s claim that it is landlocked also fails in light of the 1959 express easement which allows passage northwards towards Close Avenue via Bruckner Expressway. Furthermore, Defendant BRAL avers that Plaintiff is equally unable to provide evidence that a prescriptive easement exists over Defendant’s properties as their use was in common with the general public and given as a neighborly accommodation. Defendant BRAL argues that Plaintiff’s request for compensatory and punitive damages should be dismissed as Plaintiff failed to provide evidence to support their claim for compensatory damages, nor can punitive damages be appropriately assessed as a matter of law. Defendant BRAL’s request for summary judgment lies on the documentary evidence provided which was publicly filed attesting to the ownership of the properties and their respective property lines. Defendant BRAL notes that Plaintiff does not claim otherwise which warrants a declaratory judgment that Defendant BRAL is the owner of the
900 Properties and those portions of Close Avenue abutting each property to the center line of Close Avenue. In furtherance of their claim, Defendant BRAL states that any easement interest claimed by Plaintiff was extinguished upon their purchase of the property as they exhibited exclusive dominion and control over the Story Gate and that portion of Close Avenue running between the 900 Properties, adversely possessing the property under claim of right.
Law and Analysis:
The court’s function on this motion for summary judgment is issue finding rather
than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978). The movant must come forward with evidentiary proof in admissible form sufficient to direct judgment in its favor as a matter of law. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. Stone v. Goodson, 8 N.Y.2d 8, (1960); Sillman v. Twentieth Century Fox Film Corp., supra.
The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the “burden of production” (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a
triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus, if evidence is equally balanced, the movant has failed to meet its burden. 300 East 34th Street Co. v. Habeeb, 683 N.Y.S.2d 175 (1st Dept. 1997).
“To acquire title to real property by adverse possession, common law requires the possessor to establish that the character of the possession is ‘hostile and under a claim of right, actual, open and notorious, exclusive and continuous’ for the statutory period of 10 years… Since the acquisition of title to land by adverse possession is not favored under the law, these elements must be proven by clear and convincing evidence.” Ray v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154 (1996)(Internal citations omitted). Generally, where the plaintiff demonstrates by clear and convincing evidence the open and notorious, continuous, uninterrupted and undisputed
use of the subject property, it is presumed that the use was adverse and the burden shifts to defendant to show that the use was permissive. See, Carty v. Goodwin, 55 N.Y.S.3d 108 (2d Dept. 2017); Colin Realty Co., LLC v. Manhasset Pizza, LLC, 26 N.Y.S.3d 606 (2d Dept. 2016); Duckworth v. Ning Fun Chiu, 822 N.Y.S.2d 147 (2d Dept. 2016); Ducasse v. D’Alonzo, 954 N.Y.S.2d 615 (2d Dept. 2012); Rivermere Apts. v. Stoneleigh Parkway, 713 N.Y.S.2d 356 (2d Dept 2000). However, the presumption of adversity is inapplicable when the established use by claimant is not exclusive. Use of a particular strip of land in common with the general public will not ripen into an easement by prescription. Susquehanna Realty Corp. v. Barth, 485 N.Y.S.2d 795 (2d Dept. 1985). Prescriptive easements may not be created merely by declaration or threat of the user, but there must be actual use which must be open, notorious and adverse, and in order for the use to be adverse, it must be wrongful. Merriam v. 352 West 42nd St. Corp., 221 N.Y.S.2d 82 (1st Dept. 1961). The plaintiffs must meet a high standard of proof to establish adverse possession and an easement by prescription. See, Boumis v. Caetano, 528 N.Y.S.2d 104 (2d Dept. 1988); Rusoff v. Engel, 452 N.Y.S.2d 250 (2d Dept. 1982); Battista v. Pine Island Park Association, 281 N.Y.S.2d 635 (2d Dept. 1967).
An easement by implication is created on the severance of the unity of ownership in an estate; first, a separation of the title; second, that before the separation takes place, the use, which gives rise to the easement, shall have been so long continued and so obvious or manifest as to show that it was meant to be permanent; and, third, that the easement shall be necessary to the beneficial enjoyment of the land granted or retained. (Heyman v. Biggs, 223 NY 118, 120 [1918]). Thus, “when the owner of a tract of land conveys a part of it to another, he impliedly grants all those apparent and visible easements which at the time of the grant are necessary for the reasonable use of the property granted and which are used by the owner of the entirety for the benefit of the part granted [citations omitted]” (231 Ctr. St. Assoc. v. Post Bros. Serv. Stas., Inc., 252 AD2d 406, 409 [1st Dept 1998].
Here, Defendants have met their initial burden of establishing their prima facie entitlement to summary judgment dismissing the causes of action against them as a matter of law. Defendants have provided documentary evidence as to the ownership and interest in the subject properties and any easements which have been delineated within the respective deeds – 1959 express easement. Since Defendants met their initial burden on the motion for summary judgment, the burden shifts to Plaintiff to raise a triable issue of fact. (See Alvarez v. Prospect Hosp., supra.). Though Plaintiff argues the existence of a prescriptive easement, as held in this Court’s February 26, 2019 decision, Plaintiff
“falls short of establishing a prescriptive easement by clear and convincing evidence. Even assuming plaintiff established that their use of Close Avenue located on portions abutting the defendants’ property was open, notorious, continuous, and undisputed, defendants presented evidence from which one could conclude plaintiff’s use of the purported easement was not hostile. Since there is no presumption that CPA’s use of Close Avenue was adverse or hostile, necessary for a finding of a prescriptive easement, the burden never shifted to defendants to show that the use was instead permissive. A review of all of the evidence shows that CPA’s use of the purported easement was not hostile but appears to have been permitted as a matter of neighborly accommodation.”
Furthermore, the completion of discovery has not provided any sufficient proof of Plaintiff’s claim to a prescriptive easement or even an implied easement. Though Defendants were not the owners during the permissive period, Plaintiff has not established prior use or strict necessity over Defendants’ properties. There is no evidence or testimony given which would conclude that when the properties were commonly owned by the Sacchi Family or Cannavo, the use of Close Avenue for their respective businesses was so continuous, obvious, and manifest that it indicated that it was meant to be permanent. Moreover, Defendants have provided with supporting testimony that upon their purchase of the property, they renovated the Story Avenue gate, and provided Plaintiff’s tenant, Eve Sales with keys for deliveries he received. As noted previously — of neighborly accommodation, this was not sufficient to establish reasonable necessity. Plaintiff was not landlocked as there was access by way of the Sacchi 1959 express easement. Plaintiff, in opposition, failed to meet its burden.
Thus, in light of the above, Defendants’ motions are granted.
Accordingly, Defendants New 970 and BRAL’s motion for summary judgment dismissing Plaintiff’s complaint are granted. Defendants are declared the owners of the respective properties 900 Close Avenue and 950 Close Avenue. Defendants’ counterclaim as to a permanent injunction against Plaintiff for use of their portion of Close Avenue is denied. All parties have attested that Close Avenue has been used by and continues to be open to the general public. Plaintiff’s Complaint is dismissed.
IT IS HEREBY ORDERED, that Defendants shall serve a copy of this Order with Notice of Entry on the Clerk’s Office;
ORDERED, that Defendants will serve Plaintiff by first-class mail within ten
(10) days thereof.
ORDERED, that Defendant New 970 shall submit an Order quieting title to the
property pursuant to the boundaries delineated in the deed filed with the Department of Finance. ORDERED, that Defendant BRAL shall submit an Order quieting title to the
property pursuant to the boundaries delineated in the deed filed with the Department of Finance. This constitutes the decision and Order of this Court.